Introduction to Mediation

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Agenda of the day

Introduction of mediation in international environment Preparation of the exercice 10mn redings Preparation by team 15 mn Simulation 45 mn Break Debrieffing videos: Gender in the mediation Film clip: Lakhdar Brahimi a mediator in international conflict "crash" wedding
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History of Mediation

Tradition of dispute resolution in almost all cultures of the world.

Debriefing : Mediation and trial in international business

Why mediation is preferable to trial?

What about your feeling as parties in this midation?

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WHY MEDIATION?

Beyond hope, Freddy Tsimba Rp. Dmoc. Congo 2007

Three dimension of Mediation

The problem What is the probleme?

The people Who are involved on the mediation? The process How the mediation is managed?

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Interests and positions of the parties

Position A Positions Position B

Intrets

Needs, values and shared positions

Needs

Fears and shared needs

Neutrality and coercion in Mediation

Third Party Arbitration
Coercive Mediation Imposition of the solution Muscular Mediation

Party A

Party B

Neutral mediation Conciliation problem solving Good office

Third Party Mediation

DEFINING THE CONCEPT OF MEDIATION

"Any action taken by a player who is not directly involved in the crisis, is designated to reduce or stop the obstacles and facilitate the negotiation and conclusion of the crisis itself. Oran R.Young, The Intermediaries: Third Parties in International Crisis, Princeton (N.J.), Princeton University Press, 1967, p.34. "The role of intermediary [...] Supported by a third party whose main purpose is the result of a compromise between the parties on issues of concern or at least to stop the conflict behaviors ". Christopher R.Mitchell, The Structure of

 The intervention of a neutral, impartial and benevolent party to facilitate the resumption or continuation of dialogue between parties, so they succeed by themselves in exploring their conflicts, identifying underlying needs of each party, imagining all the possible solutions, evaluating them and finally choosing those upon which they freely and mutually agree. Alain Lempereur, Jacques Salzer et Aurlien Colson, Mthode de mdiation, Paris : Dunod, 2008, pp. 3. Healing Mediation : a last resort; the choice between the perpetuation of the conflict or the use of a higher authority to help resolve the conflict Preventive Mediation: discuss the difficulties between partners before it turns into conflict

Seven principles for a successful mediation 1. Independence versus the perceived reality 2. Neutrality versus equity 3. Principle of impartiality versus personal interests 4. Principle of confidentiality versus the exceptional circumstances 5. Principle of respect of rights versus creativity 6. Principle of Fairness versus the free will of the parties

SIX STEPS FOR CONDUCTING A MEDIATION

SIX STEPS IN A MEDIATION

3. Needs 4. Explore Solutions

2. Identify the problem

5. Make Commitments

1. Introductions

6. Conclude

Lempereur, Salzer & Colson, Mthode de mdiation...

FIRST STEP: Take Time for INTRODUCTIONS

Make introductions (parties and mediator) Explain the purpose and limitations of mediation Explain views on the role of the mediator Establish basic principles of dialogue and introduce the problem(s) to be mediated. Obtain the agreement of the parties on the principles of mediation and the problem(s) to be mediated.

1 Objectives and limitations?

Explain that mediation is:
facilitating negotiations between the parties (see concept of the role of mediator) explanation of the different stages of mediation explanation of the role of individual interviews ("caucuses") voluntary, not imposed decisions Optional Explain what mediation is not: not a place of argument not a trial no arbitration Optional: explain what will happen if mediation fails

Explain role of mediator

Intervention on three types of problems: Process Relationships between the parties Substance, the underlying problem & issues Two types of intervention: Advisory (more aggressive) Facilitating the birth of solutions (midwifery) A mixture of the two

3 Principles of Dialogue
Principle of no-interruptions
The parties must each speak in turn (and therefore do not interrupt one another) Only the mediator is authorized to interrupt a party and will do so only if clarification is needed

Principle of mutual respect between parties

The parties shall at all times show respect for one another The application of this principle is much more difficult to determine objectively The mediator must be careful and avoid projecting his interpretation of respect.

Principles of Confidentiality
Two principles concerning the use of what is said or decided during mediation:
Everything stated during mediation must be kept confidential (not be repeated outside the mediation session) Guarantees that the information exchanged is safe and is not used against you in another place.

Principle of confidentiality will be enforced

Decisions in mediation should be fully implemented, as a contract. Respect of decisions gives meaning to mediation.

Agreement on Principles Mediation

Agreement on three points:
1) Principle of dialogue; 2) Principle of confidentiality;

3) Review the principles and check one last time that the parties express their commitment to engage in mediation. These three points are called the compromise of mediation:
Framework in which the mediation takes place. Mediator can refer to this compromise at any time during the mediation.

SECOND STAGE: IDENTIFICATION OF THE PROBLEM

Each party clarifies the facts. (choose one person to start) Use active listening. The second party summarizes what the first party said, always using active listening. Mediator checks with the first party to make sure the understanding of the second party is correct. After both parties have stated the facts, allow each party to respond to statements made by the other. Identify the issues, major problems

STEP THREE: DETERMINE Positions, Interests, Needs

Each party explains what is most important to him/her (hierarchy of needs) Ask each party to summarize their understanding of the interests or needs expressed by the other party. Focus the parties' attention on the needs expressed and not on their interests or positions.

FOURTH STAGE: EXPLORE OPTIONS to engage in brainstorming Get parties

Explain the purpose of brainstorming: think of all possible ways to meet the identified needs Explain the method of brainstorming:
participation of both parties acceptance of the wildest ideas no criticism or assessment of ideas, no ownership of ideas, or decisions made

Parties agree on the purpose and method of brainstorming.

FOURTH STEP: EXPLORING OPTIONS (2)

Urge the parties to research solutions, including crazy ideas Whenever necessary remind the parties of the principles of brainstorming. LIST THE PROPOSED OPTIONS

FIFTH STEP: Evaluating and Agreeing on Options

Objectives of this step: - Amongst the options identified through brainstorming the parties evaluate each option and determine those which are acceptable to both. - IF none of these options are acceptable to both, the parties can resort to finding other ideas outside the table (outside of the mediation)

SIXTH STEP: CONCLUDE the MEDIATION

Ask the parties to assess the various options. Use the criteria for evaluation. If there is deadlock on certain difficult points, come back to them later. If necessary, discuss alternative options and have parties evaluate them.

List the options which the parties appear to agree upon. Ensure that there is indeed a COMMITMENT not only today, but tomorrow and in the future.

Summarize any commitments made, in writing if necessary If no global agreement has been reached, try to get one eventually:
review alternatives Possibility of meeting again Work through the points blocking the agreement

In all cases, congratulate the parties for their ability to work together in reaching an agreement.

Lessons learned from Negotiations and Mediations

A VIRTUOUS CIRCLE OF MEDIATION AND NEGOTIATION

1. PREPARING

4. CONFIRMING/INNOVATING

2. NEGOTIATING

3. ANALYSING

Four steps on problems solving

II. Diagnostic of the origin

III. General Approach Possible solutions

I. Problems

IV. Specific Actions (Commitments)

SOME RELATED CONCEPTS IN THE FIELD OF

CONCILIATION
Conciliation is a procedure used by people in conflict, seeking to reach an amicable settlement. It is a free procedure which will avoid lengthy procedures ... Conciliation is method of alternative dispute resolution. It involves the intervention of a third party, who, after hearing the parties and discussing their views, propose a solution to resolve their disputes. Conciliation differs from mediation, which is an accompaniment, and the judgment is binding. The parties are of course free to accept or refuse. The

ARBITRATION
It is a simple procedure that can resolve a dispute without going through the courts, by entrusting the dispute to one or more individuals selected by the parties. In international relations, arbitration has for its object the settlement of disputes between States by judges of their choice and on the basis of respect for law. "Section 37 of the Hague Convention of October 18, 1907 Settlement peaceful resolution of international conflicts. Arbitration is the conflict resolution method most accepted and widely used among sovereign states. States failing to recognize any rule other than that they have established or accepted.

CONSULTATION
Consultation is a process of dialogue whose purpose is to arrive at proposals accepted by all parties involved, and to provide guidance. The aim of the consultation is to seek agreement amongst participants for subsequent decision making, not only to exchange information or arguments. This distinguishes dialogue from a debate. The aim of the consultation is to adapt decisions to the needs of the actors and to adjust them to the interests of everyone, even if the decision remains in the hands of the stakeholders. Consultation is different from negotiation in that it does not necessarily lead to a decision, but it aims to prepare for negotiation. Concerted action is for

Concertation is different from consulting in that it does not amount to a request for an opinion. The consultation involves the confrontation between the parties, the exchange of arguments, clarifying the points of view of each. Dialogue is different from mediation in that it does not require a third party to facilitate the search for agreement between the parties. The exchanges are driven by one of the parties or, in some cases, a facilitator linked to one of them.

Good office or facilitation

The "good offices" work for the facilitator: provide support, fluidity and encourage contact between conflicting parties. No interference in the content of the negotiations. Freely chosen by the parties to the conflict, it helps to: Meet on neutral ground; Initiate a dialogue to find solutions to the conflict; Negotiate; Sign an agreement.

Films
Cuba, une odysse africaine, Jian El Tahri 2007, 2X90, The Peacekeepers, Paul Cowan, 2005, 83 min 07 s, 13 Production. Saint-Germain ou la ngociation, 2003 Grard Corbiau, Les mediateurs du pacifique, CharlesBelmont, 1h 55mn. Le temps du Dbat et l'Age de la ngociation dEric Blanchot, IO production, Citizen Tlvision 2006, Dure 2X55 minutes The Fog of War, Errol Morris, 2003 (Oscar du meilleur documentaire en 2004 12 Angry Men, Sidney Lumet, 1957 Endgame, Peter Travis, 2010 Rising Sun, Philip Kaufman 1993. The Great Debaters, Denzel Washington 2007

Books

Bibliography
AHAMED Sad Abass (2009) Facilitation internationale et ngociation politique en Rpublique Dmocratique du Congo (RDC) : un tat de belligrance sans fin? in Mlanges en lhonneur de Christophe Dupont paratre en septembre. DARBON Dominique, Autopsie du miracle sud-africain : le cas de la Truth and Reconciliation commission sud-africaine , Revue franaise de science politique, 48 (6), dcembre 1998, p. 707-724. FAGET Jacques (2008) LES MTAMORPHOSES DU TRAVAIL DE PAIX tat des travaux sur la mdiation dans les conflits politiques violents Vol. 58 2008/2 QUANTIN Patrick (2005) Jacques Faget (dir) Omar Bongo, mdiateur des conflits africains - - 276 pages LECOUTRE Delphine (2005) La mdiation de l'OUA dans le conflit entre l'thiopie et l'rythre (1998-2000)

 LABANA LASAY ABAR Jean Berchmanh (2006), Ngociation politique et processus de paix en RDC , dans MANTUBA-NGOMA et al, La Rpublique Dmocratique du Congo : Une dmocratie au bout du fusil, Fondation Konrad Adenauer, Kinshasa. p. 91. M'BOKOLO-Elikia (2009) Mdiations africaines : Omar Bongo et les dfis diplomatiques d'un continent lArchipel PEKAR LEMPEREUR Alain (2007), BENSIMON et PEKAR LEMPEREUR (dir). La mdiation postconflit dans La mdiation mode demploi, Paris, A2C mdias. ZARTMAN William (2004), Transfrer le conflit d'un niveau militaire a un niveau politique Expriences de ngociations et de mdiations internationales , Ngociations, n 2.